The ICC State Parties’ Presidency of the UN Security Council: A Momentous Opportunity to Provide the Limbless Giant with Limbs to Walk and Work

[Ahmed Abofoul is an Independent Legal Researcher at Al-Haq’s Legal Research and Advocacy Department.]

Introduction

Since its creation, the International Criminal Court (ICC or the Court) has often been understandably described as a “giant without arms or legs”. As the Court does not have enforcement powers of its own, it has been entirely dependent on the cooperation of States to fulfil its mandate of investigating and prosecuting those responsible for the commission of the most serious crimes that concern the international community as a whole. Therefore, the cooperation of States has functioned as the “arms and legs” of the Court. State’s cooperation is essential for the ICC because it cannot prosecute in absentia. Therefore, it needs the cooperation of States to arrest or surrender accused persons. Moreover, the Court needs States cooperation to be able to conduct its field investigation and gathering of evidence. Furthermore, the Court relies on the cooperation of relevant States at the domestic level in order to enforce its sentences and to secure reparations for victims through, inter alia, freezing and forfeiture of assets of those convicted.

Starting with the current presidency of Ireland, from September 2021 to January 2022, the United Nations Security Council (UNSC) presidency is going to be for ICC State parties, uninterrupted. This poses a historic opportunity where a collective effort by Ireland, Kenya, Mexico, Niger and Norway could keep the discussions regarding the cooperation between the UNSC and the ICC on the UNSC agenda for that period. Preferably, such initiative would be conducted at both the UNSC and the ICC Assembly of States Parties (ASP) simultaneously, with prior agreement and full coordination among the respective States.

Since day one of its Presidency, Al-Haq, a Palestinian human rights organisation, have called on Ireland to work collectively with other ICC State Parties to ensure that the discussion regarding the cooperation between the ICC and the UNSC, remains on the UNSC agenda. (see here at 50:53) Moreover, Al-Haq sent letters to the representatives of the respective states at the UN urging them to consider pursuing such collective efforts at the UNSC, as ICC States Parties. Furthermore, a briefing paper has been published by Al-Haq demonstrating the importance of such collective efforts at the UNSC, including in relation to the Situation in the State of Palestine.

This piece gives first an overview of the cooperation between the ICC and the UNSC. Secondly, this piece discusses the promotion of States’ cooperation by the UNSC, including at the investigation stage. Thirdly, before providing its conclusion, this piece demonstrates the importance of this historic opportunity to promote and advance cooperation between the ICC and the UNSC and the considerations that must be born in mind for the success of such efforts.

Overview of the Cooperation Between the UN Security Council and the ICC

The relationship between the United Nations (UN), especially the UNSC and the ICC proved controversial during the drafting of the Rome Statute and thereafter. This relationship has been substantiated to be somewhat problematic, to the extent to which some have wondered whether the relationship between the two institutions is that of “Allies or Foes?”

The 2004 Negotiated Relationship Agreement between the ICC and the United Nations (UN) (Relationship Agreement), recalled in its Preamble that the Rome Statute “reaffirm[ed] the Purposes and Principles of the Charter of the United Nations.” Moreover, it noted the Court’s significant role in dealing with “the most serious crimes of concern to the international community as a whole […] which threaten the peace, security and well-being of the world.” The cooperation between the UNSC and the Court has been addressed in Article 17 of the Agreement, which envisaged three possible ways of interactions between the UNSC and the Court, and addressed the procedures to be followed thereafter. The first is in the case of a UNSC referral pursuant to Article 13 (b) of the Statute. The second is in the case of a UNSC deferral, when the UNSC adopt a resolution requesting the Court “not to commence or proceed with an investigation or prosecution”, pursuant to Article 16 of the Statute. Finally, the duty of the UNSC to enforce cooperation in cases of UNSC referral to the Court, if a State Party or a non-Party State which had entered into an ad-hoc arrangement or an agreement with the Court, fails to cooperate.

Promotion of States’ Cooperation by the UN Security Council

The Negotiated Agreement did not address further ways of cooperation or more duties on the UNSC to enforce cooperation with the ICC, especially in relation to Non-State Parties to the Statute. However, there is not a single reason –at least legal or procedural– that prevents the UNSC from imposing the obligation to cooperate with the Court on all members of the UN in accordance with Article 25 of the UN Charter which stipulates that: “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council.”

In its two referrals in the situation in Darfur, Sudan and Libya, the UNSC imposed obligations of cooperation only on those two States. Notably, in the case of Darfur, the UNSC further imposed obligations of cooperation on non-State actors. (see Res. 1593(2005), para. 2) As regards other Non-State Parties to the ICC, the UNSC only urged their cooperation, and explicitly acknowledged that Non-State Parties to the Rome Statute have no obligation to cooperate with the Court. (See e.g., Ibid., para. 6)

The practice of the UNSC regarding the ICC differs from its previous practice regarding the ad-hoc International Criminal Tribunals for Former Yugoslavia (ICTY) and for Rwanda (ICTR), in which the UNSC imposed cooperation obligations on all UN member States. Although the ICC is a treaty-based body, the practice of the UNSC in relation to the ad-hoc tribunals is still relevant, especially in cases of UNSC referrals, because both the ICTY and the ICTR were created by the UNSC while exercising its powers, to maintain international peace and security, under Chapter VII of the UN Charter. Consequently, it has been correctly noted that:

[C]ooperation by all States, rather than just the territorial State, is not purely symbolic but arises out of a practical necessity. This is especially because accused persons might be found on the territory of non-States parties, or may be nationals of such States.

Accordingly, to ensure the effective arrest and transfer of such individuals to the Court, it is essential to guarantee a universal scope of application in relation to the obligation to cooperate with the Court. Therefore, the UNSC should not seek to limit the Court’s jurisdiction. Notably, in its referrals to Sudan and Libya, and on two occasions following the entry into force of the Statue, the UNSC excluded nationals, current or former officials of a States non-Party to the Statute from the Court’s jurisdiction. (see Res. 1422(2002) and Res. 1487(2003)) Some have accurately argued that such practice of the UNSC is “inconsistent with the terms of the statute, particularly Articles 13(b) and 16, which do not authorise the UNSC to make such types of carve-out when referring or deferring a situation before the ICC”.

It is also argued that sometimes there is an overlap between the situations within the jurisdiction of the ICC and the situations being considered by the UNSC while exercising its responsibilities for maintaining peace and security. This is understandable, due to the inextricable relation between the commission of international crimes and the threat to international peace and security. Given the complementary rule of both institutions in the pursuance of peace and justice, the UNSC should also promote cooperation with the Court in situations that are being examined before the Court without a UNSC referral. In such situations, the UNSC could directly or indirectly provide or promote support and cooperation to the Court. In addition to the modest provision of political and diplomatic support, both publicly and privately, the UNSC could support and promote cooperation through adopting several important measures at the investigation and/or prosecution stage, such as imposing targeted sanctions on individuals who are subject to an arrest warrant or summons to appear issued by the Court. Moreover, the UNSC could include an obligation to cooperate directly with the ICC, within the mandate of the UN Peacekeeping, Peace enforcement or Peacebuilding Missions. Further, an obligation to provide support to other relevant bodies acting in cooperation with the Court, including States and other UN or regional organs.

More generally, the UNSC could entertain a more structured and better-informed discussion of matters relating to the Court. Consequently, the UNSC should extend the mandate of its existing Informed Working Group on International Tribunals to consider matters relating to the relationship between the UNSC and the ICC. Another General measure would be to include in its referral resolutions or to adopt a separate Chapter VII resolution requesting all UN members to implement the necessary domestic legislations enabling arrest and surrender to the ICC, in addition to further assist and facilitate the investigations activities of the Court. (See Akande and de Souza Dias, p. 9)

A Historic Opportunity to Promote and Advance Cooperation

The level of cooperation between the UNSC and the ICC depends profoundly on the composition of the UNSC, especially how many of its members are parties to the Rome Statute. Moreover, the level of cooperation between the UNSC and the ICC also relies heavily on the commitment of these States to fight impunity and prosecute those who commit the core crimes. This could be a significant factor explaining the mutable attitude of the UNSC towards the ICC and international accountability in different years. For example, in 2011, when the UNSC referred the situation in Libya to the Court, there were nine States parties to the Rome Statute at the UNSC. At other times, where the ICC States parties are in the minority at the UNSC, a more passive attitude towards the ICC and international accountability has prevailed. Moreover, it is important for States parties within the UNSC to enhance and maximize their presence at the Presidency of the Council. Such a position bestows a great opportunity to promote and advance international justice and accountability on the UNSC agenda. For example, in January 2012, it was under the South African presidency, that the UN High Commissioner for Human Rights, Ms Navi Pillay, addressed the UNSC regarding the situation in Syria.

Starting with Ireland’s current presidency then Kenya, Mexico, Niger and Norway, respectively, a collective effort by these ICC States parties could keep the discussion regarding the promotion and advancement of cooperation between the UNSC and the ICC on the UNSC agenda for the period of their presidency, i.e., at least 5 months. This could constitute the longest period in which the discussion regarding the issue of cooperation between the UNSC and the ICC would be present on the agenda of the UNSC. However, for such initiative to be successful, another consideration must be born in mind. Indeed, it is crucial for those ICC State Parties to be keen to take such actions.

The commitment and activism of these ICC State Parties in favour of the Court and the accountability for its core crimes is a determinative factor to be considered for the success of such collective efforts. Notably, such initiatives are not unprecedented at the UNSC. For example, in January 2012, under the Presidency of South Africa, there was a day-long debate within the Security Council on the “promotion and strengthening of the rule of law in the maintenance of international peace and security” and an ensuing Statement by the President of the Security Council. Such initiatives were rightly commended as platforms that have been used to emphasize the need for effective cooperation both by States and by UN organs with the work of the international Courts and Tribunals. (See here, p. 12) However, the Security Council is yet to pass any operative resolutions with practical implications on this matter.

Conclusion

Although such initiative is unlikely to result in the adoption of an operative resolution with practical implications per se, due to the expected veto of at least one UNSC Permanent Member, still it poses a great opportunity to keep the discussion of the promotion and advancement of the UNSC cooperation with the ICC on the UNSC agenda for at least five months uninterrupted.

Pursuant to the respective states’ commitment to human rights, international justice and the rule of international law, their UNSC presidency represents a momentous opportunity to pursue collective efforts, as ICC State Parties, to promote and advance cooperation between the UNSC and the ICC throughout their presidency.

The authors strongly encourage the aforementioned States to engage in a collective effort to include such discussion, especially in relation to the situation in Palestine, as an agenda item at the UNSC throughout their presidency.